HomeMy WebLinkAbout2024-12-03 1250 Oceanside LLC Objection to Proposed FOF, COL, D&O (PL-BOA-2024-000105) CARLSMITH BALL LLP
PATRICK K. WONG 5878
75-5722 Kuakini Highway, Suite 208
Kailua Kona, Hawai`i 96740
Tel. No. (808) 329-6464
Facsimile No. (808) 329-9450
pwong(a,carlsmith.com
DEREK B. SIMON 10612
1001 Bishop Street, Suite 2100
Honolulu, Hawai`i 96813
Tel. No. (808) 523-2500
Facsimile No. (808) 523-0842
dsimon@carlsmith.com
IAN R. WESLEY-SMITH 10626
121 Waianuenue Avenue
P.O. Box 686
Hilo, Hawai`i 96721-0686
Tel. No. (808) 969-8416
Facsimile No. (808) 935-7975
iwesley-smith@carlsmith.com
Attorneys for
1250 OCEANSIDE, LLC
BEFORE THE BOARD OF APPEALS
PLANNING DEPARTMENT
COUNTY OF HAWAII
In the Matter of Appeal Case No. PL-BOA-2024-000105
of 1250 OCEANSIDE, LLC'S
OBJECTIONS TO COUNTY OF
1250 OCEANSIDE, LLC HAWAII PLANNING DIRECTOR'S
PROPOSED FINDINGS OF FACT,
From the decision of the Planning Director, CONCLUSIONS OF LAW, DECISION
dated April 29, 2024 (Docket No. 24-0002) AND ORDER; CERTIFICATE OF
SERVICE
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1250 OCEANSIDE, LLC'S OBJECTIONS TO COUNTY OF HAWAII PLANNING
DIRECTOR'S PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW,
DECISION AND ORDER
Pursuant to Rule 3-20 of the County of Hawai`i Board of Appeals ("BOA") Rules of
Practice and Procedures ("BOA Rules"), Appellant 1250 OCEANSIDE, LLC ("Oceanside"),by
and through its attorneys, Carlsmith Ball LLP, hereby respectfully submits its Objections to the
County of Hawai`i ("County") Planning Director's Proposed Findings of Fact, Conclusions of
Law, Decision and Order filed November 14, 2024 ("Proposed Order").
By submitting these Objections, as well as the supplemental findings of fact("FOF") and
conclusions of law ("COL")below, Oceanside does not waive any arguments that the Findings
of Fact, Conclusions of Law, Decision and Order ultimately adopted by the BOA fails to satisfy
any and all applicable legal requirements, including those under Haw. Rev. Stat. ("HRS") § 91-
12, or that the Planning Director and/or BOA otherwise erred in rendering their respective
decisions.
I. Oceanside's General Objections.
Oceanside objects to the Planning Director's Proposed Order in its entirety on the
grounds that it fails to satisfy the requirements of HRS § 91-12. HRS § 91-12 requires, in
pertinent part, that"[e]very decision and order adverse to a party to the proceeding, rendered by
an agency in a contested case, shall be in writing or stated in the record and shall be
accompanied by separate findings of fact and conclusions of law." (Emphasis added).
The Hawai`i Supreme Court has explained that"[t]he requirement that the [agency] set
out findings of fact and conclusions of law is no mere technical or perfunctory matter."
Application of Hawaii Elec. Light Co., Inc., 60 Haw. 625, 641, 594 P.2d 612, 623 (1979)
("HELCO") (emphasis added). Rather, "[t]he purpose of the statutory requirement that the
agency set forth separately its findings of fact and conclusions of law is to assure reasoned
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decision making by the agency and enable judicial review of agency decisions. Id. at 641-42,
594 P.2d at 623 (emphases added). In order for the parties and courts to "be informed of the
factual basis upon which the [agency] relies, the [agency]'s findings of Ultimate facts must be
supported by findings of Basic facts which in turn are required to be supported by the evidence
in the record." Id. at 642, 594 P.2d at 623 (emphasis added). Simply put, "[t]he parties and the
court should not be left to guess, with respect to any material question of fact, or to any group
of minor matters that may have cumulative significance, the precise finding of the agency."
Application of Hawaiian Tel. Co., 54 Haw. 663, 668, 513 P.2d 1376, 1379 (1973) (emphases
added).
Unfortunately, the Planning Director's Proposed Order would do just that, leaving the
parties— and eventually the Circuit Court— left guessing as to what actual factual findings were
made and what evidence such findings were based upon. The Planning Director's Proposed
Order does not identify any"Basic facts" supporting "Ultimate facts,"much less any supporting
evidence in the record. Helco, 60 Haw. at 642, 594 P.2d at 623. At bottom, the Planning
Director's Proposed Order lacks even the most minimal specificity necessary for Oceanside to
object to and later appeal the factual findings and legal conclusions purportedly supporting the
BOA's decision in this appeal.
II. Oceanside's Specific Objections.
a. Specific Objections to the Planning Director's Proposed Findings of Fact.
Oceanside submits the following specific objections to the Planning Director's Proposed
FOFs:
PLANNING DIRECTOR'S PROPOSED OCEANSIDE'S OBJECTION
FINDINGS OF FACT
1. On February 27, 2024, 1250 Oceanside, LLC Oceanside objects to Proposed FOF 1 on
("Appellant") filed its Petition for Declaratory the grounds that is does not accurately
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Ruling, ("Petition")requesting Declaratory reflect the filing made by Oceanside on
Rulings from the Planning Director. February 27, 2024, which included
Exhibits A-H.
2. On April 29, 2024, the Planning Director Oceanside objects to Proposed FOF 2 on the
issued Zendo Kern, Planning Director, County grounds that is does not reflect that the Planning
of Hawaii's Declaratory Order In the Matter of Director's Declaratory Order issued on April
C1250 Oceanside, LLC, Petitioner, Docket No. 29, 2024 ("Declaratory Order") included
24-0002 ("Order") in response to the Petition. Exhibits A-C.
3. On May 28, 2024, Appellant filed its General Oceanside objects to Proposed FOF 3 on the
Petition for Appeal of Decisions by Planning grounds that it does not accurately reflect the
Director or Public Works Director("Appeal") filing made by Oceanside on May 28, 2024,
with the Board of Appeals, County of Hawai'i which included Oceanside's Exhibits 1-10.
("Board") appealing the Planning Director's
issuance of the Order. Oceanside further objects to Proposed FOF 3 on
the grounds that Oceanside did not appeal "the
Planning Director's issuance of the Order,"but
rather certain errors contained in the
Declaratory Order, as set forth in Oceanside's
General Petition for Appeal of Decisions by
Planning Director or Public Works Director
filed May 28, 2024 and its Consolidated
Hearing Brief filed October 4, 2024.
4. Appellant's Appeal sought to modify the n/a
Order or have the Order remanded to the
Planning Director to correct alleged errors.
5. On July 3, 2024, C&J Coupe Family Limited n/a
Partnership ("Intervenor") filed its Petition to
Intervene in General Petition for Appeal of
Decision by the Planning Director("Petition to
Intervene").
6. On July 15, 2024, Appellant filed its Position n/a
Statement on Petition to Intervene
in General Petition for Appeal of Decision by
Planning Director, dated July 3, 2024.
7. On July 17, 2024, the County filed its County n/a
of Hawai`i Planning Director's Statement of No
Position to Petition to Intervene in General
Petition for Appeal of Decision of Planning
Director, dated July 3, 2024.
8. A hearing on the Petition to Intervene was n/a
held on August 9, 2024. The Board approved
the Petition to Intervene.
9. On October 11, 2024, the Board heard oral Oceanside objects to Proposed FOF 9 on the
arguments and presentation of evidence and grounds that it does not specify that the BOA's
testimony on the Appeal at the West Hawai`i hearing on October 11, 2024, was a contested
Civic Center with all Board Member [sic] case hearing pursuant to BOA Rule 8-11, Part 3
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present in person. Michael Kaleihoku Vitousek, of the BOA Rules, and HRS ch. 91.
Manager of Land and Development of 1250
Oceanside LLC, Derek B. Simon, Esq., and Ian Oceanside further objects to Proposed FOF 9 on
R. Wesley-Smith, Esq. appeared on behalf of the grounds that it fails to reflect that Deputy
Appellant. Zendo Kern, Hawai'i County Corporation Counsel Jean K. Campbell, Esq.
Planning Director, and E. Britt Bailey, Deputy also appeared on behalf of the Planning
Corporation Counsel, appeared on behalf of the Director. Among other things, Ms. Campbell
Planning Department. Charles Coupe of C&J sat at the counsel table with Ms. Bailey during
Coupe Family Limited Partnership, Kenneth R. the hearing.
Kupchak, Esq., and Mark M. Murakami, Esq.
appeared on behalf of Intervenor.
b. Specific Objections to the Planning Director's Proposed Conclusions of Law.
Oceanside submits the following specific objections to the Planning Director's Proposed
COLs:
PLANNING DIRECTOR'S PROPOSED OCEANSIDE'S OBJECTION
CONCLUSIONS OF LAW
1. Hawai`i Revised Statues Section 91-8 allows n/a
that:
Any interested person may petition an
agency for a declaratory order as to the
applicability of any statutory provision or
of any rule or order of the agency. Each
agency shall adopt rules prescribing the
form of the petitions and the procedure for
their submission, consideration, and
prompt disposition. Orders disposing of
petitions in such cases shall have the same
status as other agency orders.
2. Planning Department Rule 3-1(a) gives the Oceanside objects to Proposed COL 2 on the
Planning Director the discretion to "issue a grounds that it mischaracterizes the nature and
declaratory order as to the applicability of any extent of the Planning Director's authority and
statutory provision, ordinance, or any rule or discretion when responding to petitions for
order of the Director or the Department." declaratory rulings pursuant to Rule 3-1 of the
County of Hawai`i Planning Department Rules
of Practice and Procedure ("PD Rules").
The Hawai`i Supreme Court has explained that,
"[b]y empowering agencies generally with the
authority to adopt rules regarding the manner
in which declaratory ruling petitions shall be
considered and disposed of, the legislature has
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granted agencies discretion with regard to the
consideration of declaratory rulings. The
boundaries of that discretion, which normally
are defined by the legislature, may in such
cases be established with reference to the
agency rules themselves, or by reading the
statute and the agency rules in tandem."
Citizens Against Reckless Dev. v. Zoning Bd. of
Appeals of City & Cnty. of Honolulu, 114 Haw.
184, 194-95, 159 P.3d 143, 153-54 (2007)
("CARD") (emphases added). An agency's
decision "to refuse to issue a declaratory ruling
[is] . . . reviewed under the `abuse of discretion'
standard, with reference to the language of HRS
§ 91-8 and the bases for refusal enumerated in
the [agency's] rule." Id. at 195, 159 P.3d at
154 (emphasis added). In other words, the
Planning Director's discretion in considering
and disposing of petitions for declaratory
rulings is circumscribed by PD Rule 3, and
when the Planning Director acts outside of the
boundaries of PD Rule 3, he commits clear
error and acts without discretion, arbitrarily and
capriciously, and in violation of the law. See id.
("In this case, DPP Rule § 3-5 governs DPP
refusals to issue a declaratory ruling, making
that decision discretionary with the DPP
Director, within the parameters of five
enumerated reasons.") (emphasis added).
Pursuant to PD Rule 3-1(c), once a petition for
declaratory ruling has been filed, the Planning
Director"shall"respond in only one of three
ways: (a) "deny the petition in writing, stating
the reasons for such denial;" (b)"issue a
declaratory order on the matters contained in
the petitions;" or (c) "set the matter for a public
hearing, as provided in Sections 3-2, 3-3 and 3-
4 of'the PD Rules. Unlike administrative rules
promulgated by other agencies, PD Rule 3 does
not provide any basis or discretion for the
Planning Director to refuse or fail to respond to
requests for declaratory ruling that are within
his jurisdiction and otherwise satisfy PD Rule 3.
See, e.g., CARD, 114 Haw. at 195, 159 P.3d at
154 (discussing administrative rule allowing the
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Honolulu Planning Director to refuse to issue
declaratory rulings on various grounds,
including that the "issuance of the declaratory
ruling may adversely affect the interests of the
city in any litigation which is pending or may
reasonably be expected to arise" and"[f]or
other good cause").
An agency commits clear errors, abuses its
discretion, and acts arbitrarily, capriciously, and
in violation of the law, when its failure or
refusal to issue a declaratory ruling is not
grounded in HRS § 91-8 or its administrative
rules governing petitions for declaratory
rulings. Id., 114 Haw. 184, 195, 159 P.3d 143,
154 (2007).
Nothing in HRS § 91-8 or PD Rule 3 grants the
Planning Director discretion to either reform
requests for declaratory rulings to avoid
addressing the substance of the request or to
otherwise fail to respond to requests that are
within the Planning Director's jurisdiction.
3. Hawai`i County Code ("HCC") Section 25-2- n/a
23 [Standard of Review],provides that:
The board of appeals may affirm the decision of
the director, or it may reverse or modify the
decision or remand the decision with
appropriate instructions if based upon the
preponderance of evidence the board finds that:
(1) The director erred in its decision; or
(2) The decision violated this chapter or
other applicable law; or
(3) The decision was arbitrary or
capricious or characterized by an abuse
of discretion or clearly unwarranted
exercise of discretion.
4. Board of Appeals Rules of Practice and n/a
Procedures, Rule 8-4(4) requires that a general
petition for an appeal must include:
A statement explaining:
(A) How the decision appealed from
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violates the law; or
(B) How the decision appealed from is
clearly erroneous; or
(C) How the decision appealed from was
arbitrary and capricious, or characterized
by an abuse of discretion or clearly
unwarranted exercise of discretion.
5. Having considered the testimony and For the reasons set forth in Oceanside's General
evidence provided, the Board unanimously Petition for Appeal of Decisions by Planning
ruled the Planning Director in issuing the Order Director or Public Works Director filed on May
did not clearly err, was not arbitrary or 28, 2024 and its Consolidated Hearing Brief
capricious, nor did he abuse his discretion. The filed October 4, 2024, as well as the evidence,
Board found that the Director (1) stayed within testimony, and argument adduced at the
his jurisdiction in the issues he addressed in the hearing, all of which is hereby incorporated by
Order, (2) correctly identified the issues outside reference, Ocean objects to Proposed COL 5 on
his discretion, and (3) that questions regarding the grounds that the BOA's decision to affirm
the Development Agreement fell outside his the decision of the Planning Director goes
powers outlined by the Hawai`i County Charter against the weight of the evidence and
and Planning Department Rule 3. Therefore, the applicable law, and constitutes reversible error.
Board denied the Appellant's appeal of Zendo
Kern, Planning Director, County of Hawai'i's Oceanside further objects to Proposed COL 5
Declaratory Order In the Matter of 1250 on the grounds that, although Proposed COL 5
Oceanside, LLC, Petitioner, Docket No. 24- states that the BOA "considered the testimony
0002. and evidence provided,"none of the Planning
Director's proposed FOFs make any actual
factual findings, much less identify the
evidence and testimony that such findings were
based on. See Helco, 60 Haw. at 642, 594 P.2d
at 623 (In order for courts to "be informed of
the factual basis upon which the [agency] relies,
the [agency]'s findings of Ultimate facts must
be supported by findings of Basic facts which in
turn are required to be supported by the
evidence in the record.").
Oceanside also objects to Proposed COL 5 on
the grounds that nothing in the BOA Rules
allows the BOA to "deny" an appeal. See BOA
Rule 8-13 ("[T]he Board shall render its
decision in an appeal proceeding,by either
affirming the decision appealed from, or
reversing or modifying the decision, or
remanding the case to the Director for further
proceedings and action); BOA Rule 8-15
("[T]he Board of Appeals may affirm the
decision of the director; or it may reverse or
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modify the decision; or remand the decision
with appropriate instructions[.]"). In fact, Vice
Chair Daina "Noe" Saiki's motion at the
hearing was to "affirm the decision of the
Planning Director." See Video of Hearing
starting at 3:11:30.1
Oceanside also objects to Proposed COL 5 on
the grounds that the BOA unanimously"voted"
and not"ruled" at the conclusion of the October
11, 2024 hearing.
c. Specific Objections to the Planning Director's Proposed Decision and Order.
Oceanside submits the following specific objections to the Planning Director's Proposed
Decision and Order:
PLANNING DIRECTOR'S PROPOSED OCEANSIDE'S OBJECTION
DECISION AND ORDER
Based on its consideration of the evidence and For the reasons set forth in Oceanside's
argument presented at hearing, including the General Petition for Appeal of
Record on Appeal, the documents on file herein, Decisions by Planning Director or
and applying the reliable probative evidence Public Works Director filed on May 28,
and law, the Board hereby Orders as follows: 2024 and its Consolidated Hearing Brief
filed October 4, 2024, as well as the
Appellant's appeal of the Planning Director's evidence, testimony, and argument
April 29, 2024, Zendo Kern, Planning Director, adduced at the hearing, all of which is
County of Hawai'i's Declaratory Order In the hereby incorporated by reference, Ocean
Matter of 1250 Oceanside, LLC, Petitioner, objects to the Planning Director's
Docket No. 24-0002 is DENIED. The above- Proposed Decision and Order on the
captioned Board of Appeals case is dismissed grounds that the BOA's decision to
with prejudice in its entirety. affirm the decision of the Planning
Director goes against the weight of the
evidence and applicable law, and
constitutes reversible error.
The Planning Director' Proposed
Decision and Order also
mischaracterizes the action that the
BOA is authorized to take. Pursuant to
BOA Rule 8-13, the BOA "shall render
its decision in an appeal proceeding,by
either affirming the decision appealed
1 Available at https://www.youtube.com/watch?v=ihTR95thScE.
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from, or reversing or modifying the
decision, or remanding the case to the
Director for further proceedings and
action." BOA Rule 8-13 similarly
provides that the BOA"may affirm the
decision of the director; or it may
reverse or modify the decision; or
remand the decision with appropriate
instructions . . . ." Nothing in the BOA
Rules authorizes the BOA to "deny" an
appeal or"dismiss" an appeal"with
prejudice in its entirety." In fact, Vice
Chair Daina "Noe" Saiki's motion at the
hearing was to "affirm the decision of
the Planning Director." See Video of
Hearing starting at 3:11:30.
Oceanside further objects to the
Planning Director' Proposed Decision
and Order on the grounds that, although
the Proposed Decision and Order states
that the BOA took its action "[b]ased on
its consideration of the evidence and
argument presented at hearing,
including the Record on Appeal, the
documents on file herein, and applying
the reliable probative evidence and
law," the Proposed Order fails to specify
any of the "evidence and argument"
considered, or any of the "reliable
probative evidence" or"law"that the
BOA purportedly applied. This is a
violation of HRS § 91-12. See id. See
Heico, 60 Haw. at 642, 594 P.2d at 623
(In order for courts to "be informed of
the factual basis upon which the
[agency] relies, the [agency]'s findings
of Ultimate facts must be supported by
findings of Basic facts which in turn are
required to be supported by the evidence
in the record.").
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III. Oceanside's Supplemental Findings of Fact and Conclusions of Law.
a. Oceanside's Supplemental Findings of Fact.
In addition to its objections to the Planning Director's Proposed FOFs set forth above,
Oceanside hereby submits the following Supplemental FOFs:
PROCEDURAL HISTORY
1. On March 31, 2023, Intervenor C&J Coupe Family Limited Partnership
("Intervenor") filed a lawsuit against the County and Oceanside. Exhibit 6. Intervenor's
Complaint alleges that Oceanside has failed to comply with, and the County has failed to
enforce, rezoning Ordinance No. 96-7 ("Ordinance No. 96-7"), rezoning Ordinance No. 96-8
("Ordinance No. 96-8"; together, the "Ordinances"), and a Development Agreement dated
April 20, 1998, between the County and Oceanside's predecessor-in-interest (the "Development
Agreement"). Id.
2. On September 15, 2023, the Circuit Court ruled that Intervenor was required to
first seek a formal determination from the County on Oceanside's compliance with the
Ordinances and Development Agreement. Exhibits 7a-7b. As a result, the Circuit Court stayed
Intervenor's lawsuit and ordered Intervenor to complete the County's declaratory ruling process
and any subsequent appeal proceedings before the BOA. Id.
3. On February 27, 2024, Oceanside filed its Petition for Declaratory Ruling in
Planning Department Docket No. 24-0002 ("Petition"), which included a total of 24 requests for
declaratory rulings (the "Requests") from the Planning Director.
4. On April 29, 2024, the Planning Director issued his Declaratory Order in Planning
Department Docket No. 24-0002.
5. On May 28, 2024, Oceanside filed its General Petition for Appeal of Decisions by
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Planning Director or Public Works Director and Exhibits 1-10 with the BOA, which appealed
certain portions of the Declaratory Order.
6. On June 20, 2024, the Planning Director filed the Record on Appeal with the
BOA.
7. On August 6, 2024, a prehearing conference was held with counsel for Oceanside,
Counsel for the Planning Director, BOA Chair Cathy Lewis, and the BOA's counsel, which the
parties agreed to continue to a later date given Intervenor's then-pending Petition to Intervene in
General Petition for Appeal of Decision by the Planning Director.
8. On September 6, 2024, the BOA issued its Order Granting Intervenor's Petition to
Intervene in General Petition for Appeal of Decision by the Planning Director Filed on July 03,
2024.
9. On September 6, 2024, the continued prehearing conference was held with
counsel for Oceanside, Counsel for the Planning Director, Counsel for Intervenor, BOA Chair
Cathy Lewis, and the BOA's counsel.
10. On September 11, 2024, the BOA issued its Scheduling Order.
11. On September 18, 2024, Oceanside filed its Exhibit List and Exhibits 11-18, and
the Planning Director filed his Exhibit List and Exhibits A-E.
12. On September 25, 2024, Oceanside filed its Second Exhibit List and Exhibits 19-
22, and Intervenor filed its Exhibit List and Exhibits 1-5.
13. On October 1, 2024, Oceanside filed the parties' Stipulation Regarding
Consolidated Hearing Procedures.
14. On October 2, 2024, Oceanside and the Planning Director filed their respective
Witness Lists.
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15. On October 4, 2024, the following filings were made: (a) Oceanside filed its
Consolidated Hearing Brief; (b) Intervenor filed its Prehearing Brief; and(c) the Planning
Director filed his Pre-Hearing Brief.
16. On October 7, 2024, Oceanside filed its Third Exhibit List and Exhibits 23-24.
17. On October 11, 2024, the BOA held a contested case hearing on Oceanside's
General Petition for Appeal of DecisionC by Planning Director.
RELEVANT PROJECT HISTORY
18. This appeal concerns the development of the master-planned community known
as Hokuli`a located on the Kona Coast in Kealakekua, Hawai`i.
19. Hokuli`a is being developed pursuant to a number entitlements issued by the
County, including the Ordinances and Development Agreement. Exhibits 3-5.
20. Among other things, the Ordinances required the construction of the following
roadways:
a. An extension of Ali`i Drive/the Mamalahoa By-Pass, increasing
connectivity between Kailua-Kona and Captain Cook;
b. An extension of Haleki`i Street to the mauka side of the Bypass Extension
("Mauka Haleki`i Extension");
c. A continuation of Haleki`i Street makai of the Bypass Extension ("Makai
Halekii Extension"); and
d. A "stub" road running north-south laterally from the Makai Haleki`i
Extension to the boundaries with the adjoining properties ("Connector
Road").
21. The Makai Haleki`i Extension and Connector Road were constructed in 1999,
pursuant to construction plans approved by the County, including the Planning Department and
Department of Public Works ("DPW"). Exhibit 10.
22. Construction of the Mauka Haleki`i Extension was completed in or around 2012,
pursuant to construction plans approved by the County, including the Planning Department and
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DPW.
23. In January 2011, the Planning Department approved Variance No. VAR 10-027
(the "Variance"), which covers, inter alia, the Mauka Haleki`i Extension, Makai Haleki`i
Extension, and Connector Road. Exhibit 8. The Variance was approved with input from DPW
and provided relief from Hawai`i County Code ("HCC") §§ 23-86 (requirements for dedicable
streets) and 23-95 (right-of-way improvements). Id.
24. The Mauka Haleki`i Extension was dedicated to the County in 2012 pursuant to
Hawai`i County Council Resolution No. 317-12. Exhibit 9.
THE PLANNING DIRECTOR'S TESTIMONY
25. At the hearing, Oceanside called Michael Kaleihoku Vitousek, Manager of Land
and Development for Oceanside, and Planning Director Zendo Kern to testify.
26. The Planning Director and Intervenor did not call any witnesses to testify at the
hearing.
27. The Planning Director testified that under the Declaratory Order, he determined
that eight Requests from Oceanside's Petition for Declaratory Ruling were within his jurisdiction
under PD Rule 3. See Video of Hearing starting at 1:38:00.
28. As reflected in the Declaratory Order, those eight Requests are as follows:
a. Dedication Requirements, Request 1: Whether the express terms of
Ordinance No. 96-7 require the dedication of the Mauka Haleki`i
Extension, Makai Haleki`i Extension, or Connector Road?
b. Dedication Requirements, Request 2: Whether the express terms of
Ordinance No. 96-8 require the dedication of the Mauka Haleki`i
Extension, Makai Haleki`i Extension, or Connector Road by a date
certain or any milestone in the development of Hokuli`a?
c. Construction Standards, Request 1: Whether the express terms of
the Ordinances set specific construction standards to which the
Mauka Haleki`i Extension, Makai Haleki`i Extension, and Connector
Road must be built to?
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d. Construction Standards, Request 2: Whether the express terms of
the Ordinances require compliance with Sections 23-86 and 23-95 of
the Hawai`i County Code for the Mauka Haleki`i Extension, Makai
Haleki`i Extension, and Connector Road?
e. Construction Standards, Request 5: Whether the express terms of
the Ordinances prohibit variances under Chapter 23 for the Mauka
Halekii Extension, Makai Haleki`i Extension, and Connector Road?
f. Variances Under Chapter 23, Request 3: Can a roadway subject to a
properly granted variance from Sections 23-86 and 23-95 of the
Hawai`i County Code be in full compliance with Chapter 23?
g. Variances Under Chapter 23, Request 4: If a roadway subject to a
variance is otherwise in full compliance with Chapter 23, can the
County accept dedication of the roadway under Section 23-10 of the
Hawai`i County Code?
h. Variances Under Chapter 23, Request 5: Can a roadway subject to a
variance from Sections 23-86 and 23-95 of the Hawai`i County Code
be dedicated under Section 23-10 of the Hawai`i County Code?
Exhibit 1 at 9-10.
29. Oceanside's counsel proceeded to question the Planning Director as to his answer
to each of these Requests and where his answers are located in the Declaratory Order. See Video
of Hearing starting at 1:38:55.
30. When questioned about Dedication Requirements, Request 1, the Planning
Director refused to answer whether Ordinance No. 96-7 requires the dedication of the Mauka
Haleki`i Extension, Makai Haleki`i Extension, and Connector Road, and instead would only
testify as to his interpretation of Ordinance No. 96-7 "taken together"with Ordinance No. 96-8.
See Video of Hearing starting at 1:39:10.
31. The BOA finds that the Planning Director failed to issue a declaratory ruling on
Dedication Requirements, Request 1 in the Declaratory Order.
32. When questioned about Dedication Requirements, Request 2, the Planning
Director testified that Ordinance No. 96-8 does not set a deadline, date certain, or development
milestone by which the Makai Haleki`i Extension and Connector Road must be dedicated to the
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County. See Video of Hearing starting at 1:41:55 (direct examination); id. starting at 2:12:55
(cross examination by Intervenor's counsel).
33. The Planning Director's testimony on Dedication Requirements, Request 2 is not
reflected in the Declaratory Order, and therefore the BOA finds that the Planning Director failed
to issue a declaratory ruling on Dedication Requirements, Request 2 in the Declaratory Order.
34. When asked to find where in the Declaratory Order the Planning Director
answered Construction Standards, Request 1, the Planning Director was unable to locate his
answer and ultimately testified: "Well, I don't think it's in there." See Video of Hearing starting
at 1:42:40 (beginning of testimony regarding Construction Standards, Request 1); id. at 1:49:10
(testifying"Well, I don't think it's in there.").
35. The BOA finds that the Planning Director failed to issue a declaratory ruling on
Construction Standards, Request 1 in the Declaratory Order.
36. When questioned about Construction Standards, Request 2, the Planning Director
was unable to locate his response in the Declaratory Order, refused to answer the question
directly on the witness stand, and would only state that he stands "by our written statement" and
is "standing on my written statement." See Video of Hearing starting at 1:50:15 (beginning of
testimony regarding Construction Standards, Request 2); id. at 1:51:25 (testifying that he stands
by"our written statement."); id. at 1:52:25 (refusing to answer whether the Ordinances reference
HCC §§ 23-86 and 23-95, and instead stating "that is why I am standing on my written
statements here.").
37. The BOA finds that the Planning Director failed to issue a declaratory ruling on
Construction Standards, Request 2 in the Declaratory Order.
38. Following Oceanside's counsel's questioning of the Planning Director about
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Construction Standards, Request 2, the BOA Chair instructed Oceanside's counsel to move on
from the line of questioning and to not ask the Planning Director any further questions regarding
his specific responses to each of the eight Requests he determined to be within his jurisdiction
under PD Rule 3 or where his responses to each Request could be found in the Declaratory
Order. See Video of Hearing starting at 1:52:55.
39. The BOA finds that the Planning Director failed to issue declaratory rulings on
the following Requests in the Declaratory Order: Construction Standards, Request 5; Variances
Under Chapter 23, Request 3; Variances Under Chapter 23, Request 4; and Variances Under
Chapter 23, Request 5.
DECLARATORY RULINGS ON DEVELOPMENT AGREEMENTS
40. The Planning Director testified that under Office of the Mayor Rule 1
(Development Agreements) ("Mayor Rule 1"), the Planning Department was delegated the
responsibility to administer development agreements on behalf of the County. See Video of
Hearing starting at 1:54:25; see also Exhibit 11 (Mayor Rule 1).
41. The Planning Director testified that, as part of carry out its delegated
responsibilities under Mayor Rule 1, the Planning Department interprets the provisions of
development agreements and applies their requirements to facts, including for the purpose of
determining compliance. See Video of Hearing starting at 1:56:00.
42. The Planning Director testified that the Declaratory Order includes statements as
to the effect and requirements of the Development Agreement. See Video of Hearing starting at
1:56:25 (beginning of questions); id. at 1:59:40 (testifying that "I agree it is written down here in
the background section.").
43. The Planning Director's interpretation of the Development Agreement was one
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of the central issues the Circuit Court directed the parties to seek from the Planning Director.
Exhibit 7a at 5, ¶5(a)(d) & (e); Exhibit 7b at 5, ¶4(d) & (e).
DEDICATION OF MAUKA HALEKI`I EXTENSION
44. The Mauka Haleki`i Extension was dedicated to the County in 2012 pursuant to
Hawai`i County Council Resolution No. 317-12. Exhibit 9.
45. The Planning Director testified that the dedication of the Mauka Haleki`i
Extension in 2012 satisfied the Ordinances as they relate to the Mauka Haleki`i Extension. See
Video of Hearing starting at 2:06:50 (testifying that"The dedication of that Mauka Haleki`i did
satisfy the dedication requirements for that section of the road for the Ordinances, yes.").
46. The Planning Director testified that the Declaratory Order does not qualify or
limit the effect and validity of either the 2012 dedication of the Mauka Haleki`i Extension to the
County, or Oceanside's satisfaction of the Ordinances as they relate to the Mauka Haleki`i
Extension. See Video of Hearing starting at 2:07:20 (testifying that his determination was not
qualified).
MAKAI EXTENSION AND CONNECTOR ROAD
47. The Planning Director testified that DPW, and not the Planning Department, has
the jurisdiction to determine whether a roadway can be accepted for dedication. See Video of
Hearing at 2:09:25.
48. The Planning Director testified that the Declaratory Order does not make any
findings, conclusions, or determinations as to whether the Makai Haleki`i Extension and
Connector Road can be dedicated in their current condition. See Video of Hearing at 2:10:10.
49. The Planning Director testified that Ordinance No. 96-8 does not set a deadline,
date certain, or development milestone by which the Makai Haleki`i Extension and Connector
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Road must be dedicated to the County. See Video of Hearing starting at 1:41:55 (direct
examination); id. starting at 2:12:55 (cross examination by Interveor's counsel).
SUA SPONTE RULINGS REGARDING VARIANCES
50. When questioned about the section of the Declaratory Order entitled
"Applicability of a Variance," the Planning Director was unable to identify which Requests from
Oceanside the section was responding to. See Video of Hearing starting at 2:00:15. For
example, when questioned about his statements in the Declaratory Order that a variance under
HCC ch. 23 cannot amend an existing ordinance,2 the Planning Director was not able to identify
which Request from Oceanside his statements were responding to. See Video of Hearing starting
at 2:03:15.
51. On cross examination by Intervenor's counsel, the Planning Director testified that
it was Intervenor's (and not Oceanside's)Petitions for Declaratory Ruling filed in Planning
Department Docket No. 24-0001 that asked the Planning Director to issue declaratory rulings on
whether a variance under HCC ch. 23 can amend an existing ordinance.3 See Video of Hearing
starting at 2:12:20.
52. The BOA finds that the Planning Director's statements in the section of the
Declaratory Order entitled"Applicability of a Variance"were not made in response to any of the
Requests submitted in Oceanside's Petition for Declaratory Ruling.
b. Oceanside's Supplemental Conclusions of Law.
In addition to its objections to the Planning Director's Proposed COLs set forth above,
Oceanside hereby submits the following Supplemental COLs:
2 See, e.g., Exhibit 1 at 12 ("Because such a variance only excuses performance under Chapter
23, Variance 10-027 cannot and does not effect an amendment of an existing ordinance.").
3 The Planning Director's Declaratory Order on Intervenor's own Petitions for Declaratory
Ruling is the subject of the separate appeal in BOA Docket No. 24-000104.
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1. The above Findings of Fact, to the extent they constitute Conclusions of Law, are
incorporated below by reference. The Conclusions of Law below, to the extent they constitute
Findings of Fact, are incorporated into the Findings of Fact above.
DECLARATORY RULINGS
2. HRS § 91-8 provides that: "Any interested person may petition an agency for a
declaratory order as to the applicability of any statutory provision or of any rule or order of the
agency. Each agency shall adopt rules prescribing the form of the petitions and the procedure for
their submission, consideration, and prompt disposition. Orders disposing of petitions in such
cases shall have the same status as other agency orders."
3. PD Rule 3-1(a) authorizes the Planning Director "to issue a declaratory order as to
the applicability of any statutory provision, ordinance, or of any rule or order of the Director or
the [Planning] Department."
4. "[T]he declaratory ruling procedure of HRS § 91-8 is meant to provide a means of
seeking a determination of whether and in what way some statute, agency rule, or order, applies
to the factual situation raised by an interested person." CARD, 114 Hawai`i at 196-97, 159 P.3d
at 155-56 (underline in original); see also Fasi v. State Public Emp't Relations Bd., 60 Haw. 436,
444, 591 P.2d 113, 118 (1979) (HRS § 91-8 "is designed to provide a means for securing from
an agency its interpretation of relevant statutes, rules and orders.").
5. "By empowering agencies generally with the authority to adopt rules regarding
the manner in which declaratory ruling petitions shall be considered and disposed of, the
legislature has granted agencies discretion with regard to the consideration of declaratory rulings.
The boundaries of that discretion, which normally are defined by the legislature, may in such
cases be established with reference to the agency rules themselves, or by reading the statute and
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the agency rules in tandem." CARD, 114 Hawai`i at 194-95, 159 P.3d at 153-54.
6. The Planning Director's discretion in considering and disposing of petitions for
declaratory rulings is circumscribed by PD Rule 3, and when the Planning Director acts outside
of the parameters of PD Rule 3, he commits clear error and acts without discretion, arbitrarily
and capriciously, and in violation of the law. See id. ("In this case, DPP Rule § 3-5 governs DPP
refusals to issue a declaratory ruling,making that decision discretionary with the DPP Director,
within the parameters of five enumerated reasons.").
7. PD Rule 3-1(c)provides that: "Within sixty days after the submission of a
petition for declaratory ruling, the Director shall either deny the petition in writing, stating the
reasons for such denial or issue a declaratory order on the matters contained in the petition, or set
the matter for a public hearing, as provided in Sections 3-2, 3-3 and 3-4 of these rules."
(Emphasis added).
8. Pursuant to PD Rule 3-1(c), once a petition for declaratory ruling has been filed,
the Planning Director can only respond in only one of three ways: (a) "deny the petition in
writing, stating the reasons for such denial;" (b)"issue a declaratory order on the matters
contained in the petitions;" or (c) "set the matter for a public hearing, as provided in Sections 3-
2, 3-3 and 3-4 of' the PD Rules.
9. Unlike administrative rules promulgated by other agencies, PD Rule 3 does not
provide any basis or discretion for the Planning Director to refuse or fail to respond to requests
for declaratory ruling that are within his jurisdiction and otherwise satisfy PD Rule 3. See, e.g.,
CARD, 114 Haw. at 195, 159 P.3d at 154 (discussing administrative rule allowing the Honolulu
Planning Director to refuse to issue declaratory rulings, including on the grounds that the
"issuance of the declaratory ruling may adversely affect the interests of the city in any litigation
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which is pending or may reasonably be expected to arise" and"[f]or other good cause").
10. An agency commits clear error, abuses its discretion, and acts arbitrarily,
capriciously, and in violation of the law when its failure or refusal to issue a declaratory ruling is
not grounded in HRS § 91-8 or its administrative rules governing petitions for declaratory
rulings. Id. at 194-95, 159 P.3d at 153-54.
11. Nothing in HRS § 91-8 or PD Rule 3 grants the Planning Director discretion to
either reform requests for declaratory rulings to avoid addressing the substance of the request or
to otherwise fail to respond to requests that are within the Planning Director's jurisdiction.
REQUESTS PLANNING DIRECTOR FAILED TO ANSWER
12. In the Declaratory Order, the Planning Director failed to answer Dedication
Requirements, Request 1, which asked: "Whether the express terms of Ordinance No. 96-7
require the dedication of the Mauka Haleki`i Extension, Makai Haleki`i Extension, or Connector
Road?" The Planning Director's failure to do so, after acknowledging that the Request was
within his jurisdiction under PD Rule 3, was clear error, an abuse of his discretion, arbitrary and
capricious, and a violation of law. The Planning Director also clearly erred, abused his
discretion, and acted arbitrarily, capriciously, and in violation of the law by not issuing the
following declaratory ruling, as set forth in Oceanside's Petition for Declaratory Ruling: "The
express terms of Ordinance No. 96-7 do not require the dedication of the Mauka Haleki`i
Extension, Makai Haleki`i Extension, or Connector Road." ROA at 30.
13. In the Declaratory Order, the Planning Director failed to answer Dedication
Requirements, Request 2, which asked: "Whether the express terms of Ordinance No. 96-8
require the dedication of the Mauka Haleki`i Extension, Makai Haleki`i Extension, or Connector
Road by a date certain or any milestone in the development of Hokuli`a?" The Planning
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Director's failure to do so, after acknowledging that the Request was within his jurisdiction
under PD Rule 3, was clear error, an abuse of his discretion, arbitrary and capricious, and a
violation of law. The Planning Director also clearly erred, abused his discretion, and acted
arbitrarily, capriciously, and in violation of the law by not issuing the following declaratory
ruling, as set forth in Oceanside's Petition for Declaratory Ruling: "The express terms of
Ordinance No. 96-8 do not require the dedication of the Mauka Haleki`i Extension, Makai
Haleki`i Extension, or Connector Road by a date certain or any milestone in the development of
Hokuli`a." ROA at 30.
14. In the Declaratory Order, the Planning Director failed to answer Construction
Standards, Request 1, which asked: "Whether the express terms of the Ordinances set specific
construction standards to which the Mauka Haleki`i Extension, Makai Haleki`i Extension, and
Connector Road must be built to?" The Planning Director's failure to do so, after
acknowledging that the Request was within his jurisdiction under PD Rule 3, was clear error, an
abuse of his discretion, arbitrary and capricious, and a violation of law. The Planning Director
also clearly erred, abused his discretion, and acted arbitrarily, capriciously, and in violation of
the law by not issuing the following declaratory ruling, as set forth in Oceanside's Petition for
Declaratory Ruling: "The express terms of the Ordinances do not set specific construction
standards to which the Mauka Haleki`i Extension, Makai Haleki`i Extension, and Connector
Road must be built to." ROA at 31.
15. In the Declaratory Order, the Planning Director failed to answer Construction
Standards, Request 2, which asked: "Whether the express terms of the Ordinances require
compliance with Sections 23-86 and 23-95 of the Hawai`i County Code for the Mauka Haleki`i
Extension, Makai Haleki`i Extension, and Connector Road?" The Planning Director's failure to
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do so, after acknowledging that the Request was within his jurisdiction under PD Rule 3, was
clear error, an abuse of his discretion, arbitrary and capricious, and a violation of law. The
Planning Director also clearly erred, abused his discretion, and acted arbitrarily, capriciously,
and in violation of the law by not issuing the following declaratory ruling, as set forth in
Oceanside's Petition for Declaratory Ruling: "The express terms of the Ordinances do not
require compliance with Sections 23-86 and 23-95 of the Hawai`i County Code for the Mauka
Haleki`i Extension, Makai Haleki`i Extension, and Connector Road." ROA at 31.
16. In the Declaratory Order, the Planning Director failed to answer Construction
Standards, Request 5, which asked: "Whether the express terms of the Ordinances prohibit
variances under Chapter 23 for the Mauka Haleki`i Extension, Makai Haleki`i Extension, and
Connector Road?" The Planning Director's failure to do so, after acknowledging that the
Request was within his jurisdiction under PD Rule 3, was clear error, an abuse of his discretion,
arbitrary and capricious, and a violation of law. The Planning Director also clearly erred, abused
his discretion, and acted arbitrarily, capriciously, and in violation of the law by not issuing the
following declaratory ruling, as set forth in Oceanside's Petition for Declaratory Ruling: "The
express terms of the Ordinances do not prohibit variances under Chapter 23 for the Mauka
Haleki`i Extension, Makai Haleki`i Extension, and Connector Road." ROA at 31.
17. In the Declaratory Order, the Planning Director failed to answer Variances Under
Chapter 23, Request 3, which asked: "Can a roadway subject to a properly granted variance
from Sections 23-86 and 23-95 of the Hawai`i County Code be in full compliance with Chapter
23?" The Planning Director's failure to do so, after acknowledging that the Request was within
his jurisdiction under PD Rule 3, was clear error, an abuse of his discretion, arbitrary and
capricious, and a violation of law. The Planning Director also clearly erred, abused his
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discretion, and acted arbitrarily, capriciously, and in violation of the law by not issuing the
following declaratory ruling, as set forth in Oceanside's Petition for Declaratory Ruling: "A
roadway subject to a properly granted variance from Sections 23-86 and 23-95 of the Hawai`i
County Code can be in full compliance with Chapter 23." ROA at 31.
18. In the Declaratory Order, the Planning Director failed to answer Variances Under
Chapter 23, Request 4, which asked: "If a roadway subject to a variance is otherwise in full
compliance with Chapter 23, can the County accept dedication of the roadway under Section 23-
10 of the Hawai`i County Code?" The Planning Director's failure to do so, after acknowledging
that the Request was within his jurisdiction under PD Rule 3, was clear error, an abuse of his
discretion, arbitrary and capricious, and a violation of law. The Planning Director also clearly
erred, abused his discretion, and acted arbitrarily, capriciously, and in violation of the law by not
issuing the following declaratory ruling, as set forth in Oceanside's Petition for Declaratory
Ruling: "A roadway that is subject to a variance and is otherwise in full compliance with
Chapter 23 can be accepted for dedication by the County under Section 23-10 of the Hawai`i
County Code." ROA at 31.
19. In the Declaratory Order, the Planning Director failed to answer Variances Under
Chapter 23, Request 5, which asked: "Can a roadway subject to a variance from Sections 23-86
and 23-95 of the Hawai`i County Code be dedicated under Section 23-10 of the Hawai`i County
Code?" The Planning Director's failure to do so, after acknowledging that the Request was
within his jurisdiction under PD Rule 3, was clear error, an abuse of his discretion, arbitrary and
capricious, and a violation of law. The Planning Director also clearly erred, abused his
discretion, and acted arbitrarily, capriciously, and in violation of the law by not issuing the
following declaratory ruling, as set forth in Oceanside's Petition for Declaratory Ruling: "A
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roadway subject to a variance from Sections 23-86 and 23-95 of the Hawai`i County Code can be
dedicated under Section 23-10 of the Hawai`i County Code." ROA at 31.
PAST AGENCY ACTION
20. Variances Under Chapter 23, Requests 1-2, and Variance Applications, Requests
1-5 did not seek declaratory rulings on past agency action that is no longer appealable. Each
Request instead asked the Planning Director to provide his interpretation of specific provisions
of the Hawai`i County Code, where those interpretations are at present unknown, subject to
dispute between parties, and"have not been brought into consideration." See CARD, 114
Hawai`i at 194-95, 159 P.3d at 153-54 (petitions for declaratory rulings are intended for
situations "where the applicability of relevant law is unknown, either because the agency has not
yet acted upon particular factual circumstances, or for some other reason the applicability of
some provisions of law have not been brought into consideration.") (emphasis added).
21. The Planning Director's refusal to issue declaratory rulings on these Requests was
clear error, an abuse of his discretion, arbitrary and capricious, and a violation of law. The
Planning Director also clearly erred, abused his discretion, and acted arbitrarily, capriciously,
and in violation of the law by not issuing the declaratory rulings on these Requests set forth in
Oceanside's Petition for Declaratory Ruling. ROA at 31-32.
DECLARATORY RULINGS ON THE DEVELOPMENT AGREEMENT
22. The Development Agreement was authorized pursuant to HRS Chapter 46, Part
VII and HCC ch. 30.
23. HCC § 30-4(c) directed the Office of the Mayor to "make such rules and
regulations as necessary to implement [HCC Chapter 30] pursuant to chapter 91, Hawai`i
Revised Statutes."
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24. Pursuant to this directive, the Office of the Mayor promulgated Mayor Rule 1,
which provides that the Planning Department "shall be responsible for the overall administration
of the [Development] Agreement." Exhibit 11(Rule 1-8).
25. Mayor Rule 1 provides a basis for the Planning Director to issue declaratory
rulings on the Development Agreement pursuant to HRS § 91-8 and PD Rule 3.
26. The Planning Director's interpretation of the Development Agreement was one of
the central issues the Circuit Court directed the parties to seek from the Planning Director.
Exhibit 7a at 5, ¶5(a)(d) & (e); Exhibit 7b at 5,¶4(d) & (e).
27. The Planning Director's refusal to issue declaratory rulings on Dedication
Requirements, Request 3, and Construction Standards, Requests 3-4 and 6, was clear error, an
abuse of his discretion, arbitrary and capricious, and a violation of law. The Planning Director
also clearly erred, abused his discretion, and acted arbitrarily, capriciously, and in violation of
the law by not issuing the declaratory rulings on these Requests set forth in Oceanside's Petition
for Declaratory Ruling. ROA at 31.
INTERPRETATION OF ORDINANCE NO. 96-7
28. "When interpreting county charters, municipal ordinances, and administrative
rules, the general principles of statutory construction apply." Robert D. Ferris Trust v. Planning
Comm'n of Cnty. of Kauai, 138 Hawai`i 307, 310, 378 P.3d 1023, 1026 (Ct. App. 2016); see also
Foster Vill. Cmty. Ass'n v. Hess, 4 Haw.App. 463, 469, 667 P.2d 850, 854 (1983).
29. "The fundamental starting point of statutory interpretation is the language of the
statute itself, and where the statutory language is unambiguous, our duty is to give effect to its
plain and obvious meaning. To effectuate a statute's plain language, its words must be taken in
their ordinary and familiar signification, and regard is to be had to their general and popular use."
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Wells Fargo Bank, N.A. v. Omiya, 142 Hawai`i 439, 449, 420 P.3d 370, 380 (2018) (citations
and quotation marks omitted).
30. Ordinance No. 96-7 does not require the dedication of the Mauka Haleki`i
Extension, Makai Haleki`i Extension, or Connector Road. The Planning Director clearly erred,
abused his discretion, and acted arbitrarily, capriciously, and in violation of the law by ruling
otherwise in the Declaratory Order.
DEDICATION OF THE MAUKA HALEKI`I EXTENSION
31. The 2012 dedication of the Mauka Haleki`i Extension pursuant to County Council
Resolution No. 317-12 fully and completely satisfied the Ordinances' requirements as they relate
to the Mauka Haleki`i Extension.
MAKAI HALEKI`I EXTENSION AND CONNECTOR ROAD
32. The Ordinances provide that"[r]oadway improvements . . . , including all plans
and construction, shall meet with the approval of the Department of Public Works." Exhibit 3 at
15-16; Exhibit 4 at 23-26.
33. The Makai Haleki`i Extension and Connector Road were constructed pursuant
plans reviewed and approved by the Planning Department and DPW. Exhibit 10.
34. DPW, and not the Planning Department, has the jurisdiction to determine whether
a roadway can be accepted for dedication.
35. The Declaratory Order does not make any findings, conclusions, or
determinations as to whether the Makai Haleki`i Extension and Connector Road can be dedicated
in their current condition.
36. Ordinance No. 96-8 does not set a deadline, date certain, or development
milestone by which the Makai Haleki`i Extension and Connector Road must be dedicated to the
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County.
37. The Makai Haleki`i Extension and Connector Road are fully constructed pursuant
to plans DPW approved, and just like the Mauka Haleki`i Extension, both can be dedicated to the
County. The Planning Director clearly erred, abused his discretion, acted arbitrarily and
capriciously, and violated the law to the extent he ruled otherwise in the Declaratory Order.
SUA SPONTE RULINGS REGARDING VARIANCES
38. Heads of administrative agencies, including the Planning Director, cannot seek
declaratory rulings from their own agencies or issue declaratory rulings sua sponte. See RGIS
Inventory Specialist v. Hawaii C.R. Comm'n, 104 Haw. 158, 162-63, 86 P.3d 449, 453-54 (2004)
("[W]here an agency employee's only interest in obtaining a declaratory ruling . . . stems from
her or his work as an agency employee, that interest is insufficient to satisfy HRS § 91-8's
standing requirements.").
39. The statements in the section of the Declaratory Order entitled"Applicability of a
Variance"were not made in response to any of the Requests submitted by Oceanside and were
therefore issued sua sponte.
40. The Planning Director does not have authority to issue declaratory rulings sua
sponte, and his inclusion of the "Applicability of a Variance" section in the Declaratory Order
was clear error, an abuse of his discretion, arbitrary and capricious, and a violation of law.
DATED: Honolulu, Hawai`i, December 3, 2024.
ls/Derek B. Simon
PATRICK K. WONG
DEREK B. SIMON
IAN R. WESLEY-SMITH
Attorneys for
1250 OCEANSIDE, LLC
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BEFORE THE BOARD OF APPEALS
PLANNING DEPARTMENT
COUNTY OF HAWAII
In the Matter of Appeal Case No. PL-BOA-2024-000105
of CERTIFICATE OF SERVICE
1250 OCEANSIDE, LLC
From the decision of the Planning Director,
dated April 29, 2024 (Docket No. 24-0002)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was duly served upon
the following parties by electronic mail (E-Mail) on December 3, 2024:
ELIZABETH A. STRANCE, ESQ.
ELIZABETH B. BAILEY, ESQ.
Corporation Counsel, County of Hawaii
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
Attorneys for Defendant
COUNTY OF HAWAII PLANNING DIRECTOR
KENNETH R. KUPCHAK
MARK M. MURAKAMI
TOREN K. YAMAMOTO
1003 Bishop Street, Suite 1600
Honolulu, Hawaii 96813
Attorneys for Intervenor
C & J COUPE FAMILY LIMITED PARTNERSHIP
SYLVIA A. WAN
Deputy Corporation Counsel
Office of the Corporation Counsel
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
Attorney for the BOARD OF APPEALS
4897-0598-6819.1.00DBS 1-00001
DATED: Honolulu, Hawai`i, December 3, 2024.
/s/Derek B. Simon
PATRICK K. WONG
DEREK B. SIMON
IAN R. WESLEY-SMITH
Attorneys for
1250 OCEANSIDE, LLC
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